COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: I 3614/2013
23 JUNE 2016
the matter between:
citation: Standard Bank Namibia Limited
v Gertze (I 3614-2013)  NAHCMD 186 (23 June 2016)
23 June 2016
23 June 2016
1. 1. Payment of the
sum of Namibian Dollars N$ 231 775.40 which was the amount reached in
the particulars of claim;
2. Compound interest
as agreed on the rate of 14.80% in the sum of two hundred and thirty
one thousand seven hundred and seventy five Dollars and forty cents
per annum calculated from the 18th of June 2013 to the date of final
3. Costs of suit,
including the costs of one instructing and one instructed Counsel.
In this matter the Plaintiff instituted action against the Defendant
claiming payment to in the sum of N$ 231 775.40 together with
interest and costs. The Defendant at all times was
unrepresented by a Legal Practitioner. He nonetheless filed a plea to
the Particulars of Claim and also launched an interlocutory
application seeking to set aside the summons issued by the Plaintiff
on the basis that the Plaintiff’s Legal Practitioner did not
file a proper power of attorney to institute the action.
When the proceedings commenced before me yesterday I directed that
the interlocutory application should be determined first. The
Defendant in addressing me pointed to that which was contained in his
Founding Affidavit and submitted that, supporting his case. Mr.
Van Vuuren who appeared on behalf of the Plaintiff submitted that the
application was fundamentally defective in as much, as the Founding
Affidavit although apparently attested to did not bear the signature
of the Plaintiff.
Although the Plaintiff contended that it was not necessary for the
Plaintiff to file a Power of Attorney in view of the current High
Court rules, I contended further that in any event it had ex
abudante cautele I presume filed a further Power of Attorney
authorising the institution of the action and rectifying any steps
that had been taken prior to the second Power of Attorney having been
filed. I dismissed the application and indicated that I will
give reasons for so doing during the cause of judgment in the main
It is correct that on the papers filed on the Court file, the
Founding Affidavit does not bear the signature of the Plaintiff.
Apart from that I am satisfied that to the extent that a Power of
Attorney was necessary the filing of the second Power of Attorney
cured any defect that may have existed in the original Power of
Attorney. The fact that the Founding Affidavit did not contain
the Defendant’s signature was not the only reason for me
dismissing the application.
The trial thereupon commenced and the Plaintiff called its 1st
witness Mr. Nolan Christians. During the cause of the evidence of Mr.
Christians and shortly after a short adjournment the Defendant
brought an application that I should recuse myself on the basis that
I had found, which I did not at that stage, that the Founding
Affidavit did not contain his signature and that the application was
procedurally defective. I declined the invitation to recuse myself
and the trial then continued.
While Mr. Christians was still giving evidence the Defendant rose and
informed me that he was no longer attending the proceedings and
excused himself. He did not take any further part in the proceedings.
He adopted that stance ostensibly because of my refusal to recuse
myself. I thus have only the evidence of Mr. Christians which
evidence was not disputed in cross examination since the Defendant
had excused himself from the further proceedings. Having called Mr.
Christians for Plaintiff, it then closed its case.
The evidence of Mr. Christians may be summarised in the following
manner; the Defendant was granted a loan by the Plaintiff in the sum
of N$ 231 775.40 during August 2011. Although the witness could not
locate the agreement underpinning the transaction, his evidence is to
the fact that the Plaintiff uses a standard pro forma document in
respect of all applications which he handed in as Exhibit E at the
trial. His evidence is to the effect that the Plaintiff would have
entered into an identical agreement with the Defendant in respect of
What remains however, is the uncontested fact that the Plaintiff did
on the 25th of August 2011 advance the amount of N$ 200 000.00 to the
Defendant, and that the Defendant had subsequently made periodical
payments to the Plaintiff to settle the outstanding amount.
From February 2012 sporadic payments were received and in some
instances no payments were received on a monthly basis. Mr.
Christians testifies that the amount currently due and owing which is
the capital together with the interest, is the sum of N$ 231 775.40.
As I had indicated his evidence remains uncontested and I have no
reason but to accept the evidence of Mr. Christians in all material
On the evidence, it is apparent that the sum of N$ 200 000.00 was
advanced to the Defendant by the Plaintiff and, I am further
satisfied that the transaction was underpinned by the agreement which
forms Exhibit E, in those circumstances it follows that I must on the
facts before me find in favour of the Plaintiff.
I accordingly grant judgment in favour of the Plaintiff against the
Payment of the sum of Namibian Dollars N$ 231 775.40 which was the
amount reached in the particulars of claim;
Compound interest as agreed on the rate of 14.80% in the sum of two
hundred and thirty one thousand seven hundred and seventy five
Dollars and forty cents per annum calculated from the 18th of June
2013 to the date of final payment;
Costs of suit, including the costs of one instructing and one
ADV VAN VUUREN
BY: Behrens & Pfeifer, Windhoek